Health Care: Constitutional Rights and Legislative Powers

Health Care: Constitutional Rights and Legislative Powers

Kathleen S. Swendiman Legislative Attorney

July 9, 2012

CRS Report for Congress

Prepared for Members and Committees of Congress

Congressional Research Service

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Health Care: Constitutional Rights and Legislative Powers

Summary

The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health care as a constitutional or legal right. This report analyzes constitutional and legal issues pertaining to a right to health care, as well as the power of Congress to enact and fund health care programs. The United States Supreme Court's decision in NFIB v. Sebelius, which upheld most of the Patient Protection and Affordable Care Act (Affordable Care Act/ACA), is also discussed.

The United States Constitution does not set forth an explicit right to health care, and the Supreme Court has never interpreted the Constitution as guaranteeing a right to health care services from the government for those who cannot afford it. The Supreme Court has, however, held that the government has an obligation to provide medical care in certain limited circumstances, such as for prisoners.

Congress has enacted numerous statutes, such as Medicare, Medicaid, and the Children's Health Insurance Program, that establish and define specific statutory rights of individuals to receive health care services from the government. As a major component of many health care entitlement statutes, Congress has provided funding to pay for the health services provided under law. Most of these statutes have been enacted pursuant to Congress's authority to "make all Laws which shall be necessary and proper" to carry out its mandate "to ... provide for the ... general Welfare." Congress has also used other constitutional powers, such as its power to regulate interstate commerce and its power to levy taxes, to enact legislation relating to health insurance and health care.

In 2010, Congress enacted the Affordable Care Act, a comprehensive health care reform law which includes a requirement, effective in 2014, that most individuals purchase health insurance, and which significantly expands the Medicaid program. A number of lawsuits were filed challenging various provisions of this legislation, and, on June 28, 2012, the Supreme Court upheld the majority of ACA's provisions. Significantly, the Court upheld the requirement that individuals purchase health insurance as a valid exercise of Congress' taxing power, but the Court limited Congress' power to spend for the general welfare by holding that Congress cannot threaten the states with the loss of all federal Medicaid funds if the states decline to expand Medicaid coverage as mandated by ACA.

In addition, several states have passed laws, amended their state constitutions, or entered into interstate compacts to attempt to "nullify" or "opt out" of the federal individual health insurance mandate and other federal health care provisions. Direct conflicts between federal laws and state nullification statutes or state constitutional amendments would raise constitutional issues which are likely to be resolved in favor of federal law under the Supremacy Clause of the United States Constitution.

A number of state constitutions contain provisions relating to health and the provision of health care services. State constitutions may provide constitutional rights that are more expansive than those found under the federal Constitution since federal rights set the minimum standards for the states.

Congressional Research Service

Health Care: Constitutional Rights and Legislative Powers

Contents

Health Care Rights Under the U.S. Constitution ............................................................................. 1 Explicit Rights in the U.S. Constitution .................................................................................... 1 The Right to Health Care at the Government's Expense........................................................... 2 Substantive Due Process: Impact on Fundamental Rights.................................................. 2 Equal Protection: Wealth as a "Suspect Class" ................................................................... 5 Exception: Under Government Control .............................................................................. 6

Health Care Legislation Under the U.S. Constitution...................................................................... 6 Specific Sources of Constitutional Authority ............................................................................ 6 The Power to Tax and Spend for the General Welfare ........................................................ 7 The Power To Regulate Interstate Commerce..................................................................... 9 Federal Health Care Programs................................................................................................. 10 The Affordable Care Act.......................................................................................................... 11 Supreme Court Decision in National Federation of Independent Business v. Sebelius .......................................................................................................................... 12 State Attempts to "Nullify" or "Opt Out" of Affordable Care Act Requirements............. 13

State Constitutions and the Provision of Health Care Services ..................................................... 16

Contacts

Author Contact Information........................................................................................................... 17

Congressional Research Service

Health Care: Constitutional Rights and Legislative Powers

Health Care Rights Under the U.S. Constitution

The health care reform debate raises many complex issues including those of coverage, accessibility, cost, accountability, and quality of health care. Underlying these policy considerations are issues regarding the status of health or health care as a moral, legal, or constitutional right. It may be useful to distinguish between a right to health and a right to health care.1 An often cited definition of "health" from the World Health Organization describes health as "a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity."2 "Health care" connotes the means for the achievement of health, as in the "care, services or supplies related to the health of an individual."3 For purposes of this report, discussion will be limited to constitutional and legal issues pertaining to a right to health care.

Numerous questions arise concerning the parameters of a "right to health care." If each individual has a right to health care, how much care does a person have a right to and from whom? Would equality of access be a component of such a right? Do federal or state governments have a duty to provide health care services to the large numbers of medically uninsured persons? What kind of health care system would fulfill a duty to provide health care? How should this duty be enforced? The debate on these and other questions may be informed by a summary of the scope of the right to health care, particularly the right to access health care paid for by the government, under the U.S. Constitution, and under interpretations of the U.S. Supreme Court.4

Explicit Rights in the U.S. Constitution

The United States Constitution does not explicitly address a right to health care. The words "health" or "medical care" do not appear anywhere in the text of the Constitution. The provisions in the Constitution indicate that the framers were somewhat more concerned with guaranteeing freedom from government, rather than with providing for specific rights to governmental services such as for health care. The right to a jury trial, the writ of habeas corpus, protection for contracts, and protection against ex post facto laws were among the few individual rights explicitly set forth in the original Constitution.5 In 1791, the Bill of Rights was added to the Constitution, and additional amendments were added following the Civil War, and thereafter. Most constitutional amendments dealt with civil and political rights, not social and economic rights.6 However, there

1 See Lawrence O. Gostin, Securing Health or Just Health Care? The Effect of the Health Care System on the Health of America, 39 ST. LOUIS U. L.J. 7 (1994), and Lawrence O. Gostin, The Right to Health: A Right to the Highest Attainable Standard of Health, 31 HASTINGS CENTER REPORT 29-10 (2001). 2 Constitution of the World Health Organization (2006), available at who_constitution_en.pdf. 3 Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 C.F.R. ?160.103. 4 This report does not analyze the scope of a right to health or health care under various international agreements or under the governing documents of other countries. For further information, see, e.g., JOHN TOBIN, THE RIGHT TO HEALTH IN INTERNATIONAL LAW (Oxford University Press 2012); Puneet K. Sandhu, A Legal Right to Health Care: What Can the United States Learn From Foreign Models of Health Rights Jurisprudence? 95 CAL. L. REV. 1151 (2007); and, Marcela X. Berdion, The Right to Health Care in the United States: Local Answers to Global Responsibilities, 60 SMU LAW REVIEW 1633 (2007). 5 W. Kent Davis, Answering Justice Ginsburg's Charge that the Constitution is `Skimpy' in Comparison to our International Neighbors: A Comparison of Fundamental Rights in American and Foreign Law, 39 S. TEX. L. REV. 951, 958 (1998). 6 Id. at 958-959.

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Health Care: Constitutional Rights and Legislative Powers

have been proposals to add a specific right to health care as an amendment to the U.S. Constitution. For example, in 1944, President Franklin D. Roosevelt, in his State of the Union address, advanced his idea of a "Second Bill of Rights" which would include "[t]he right to adequate medical care and the opportunity to achieve and enjoy good health."7 More recently, Representative Jesse L. Jackson Jr. introduced H.J.Res. 30 on February 14, 2011, a bill which proposes an amendment to the U.S. Constitution ensuring a right to health care. The proposed amendment reads, "Section 1. All persons shall enjoy the right to health care of equal high quality. Section 2. The Congress shall have power to enforce and implement this article by appropriate legislation."

The Right to Health Care at the Government's Expense

Even though the U.S. Constitution does not explicitly set forth a right to health care, the Supreme Court's decisions in the areas of the right to privacy and bodily integrity suggest the Constitution implicitly provides an individual the right to access health care services at one's own expense from willing medical providers.8 However, issues regarding access to health care do not usually concern access where a person has the means and ability to pay for health care, but rather involve situations where a person cannot afford to pay for health care. The question becomes, not whether one has a right to health care that one can pay for, but whether the government or some other entity has the obligation to provide such care to those who cannot afford it.

If the Supreme Court were to find an implicit right to health care for persons unable to pay for such care, it might do so either by finding that the Constitution implicitly guarantees such a right, or that a law which treats persons differently based on financial need creates a "suspect classification." In either case, the Court would evaluate the constitutionality of legislative enactments that unduly burden such rights or classifications under its "strict scrutiny" standard of review, thus according the highest level of constitutional protection offered by the equal protection guarantees of the Constitution. Absent a finding of an implicit fundamental right to health care for poor persons under the Constitution, or that wealth distinctions create a "suspect class," the Court would likely evaluate governmental actions involving health care using the less rigorous "rational basis" standard of review. Most health care legislation would likely be upheld, as it has been, so long as the government can show that the legislation bears a rational relationship to a legitimate governmental interest.

Substantive Due Process: Impact on Fundamental Rights

Despite the lack of discussion of health care rights in the Constitution, arguments have been made that the denial by the federal government of a minimal level of health care to poor persons transgresses the equal protection guarantees under the Constitution. While the equal protection clause of the Fourteenth Amendment applies only to the states, similar equal protection principles are applicable to the federal government through the Due Process Clause of the Fifth

7 12 Pub. Papers 41 (January 11, 1944). 8 See Roe v. Wade, 410 U.S. 113 (1973) (constitutionally protected right to choose whether or not to terminate a pregnancy), and Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990) (constitutional right to refuse medical treatment that sustains life), both of which involve a right to bodily integrity that may logically be extended to a person seeking health care services at his or her own expense.

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